When Internet Archive lost resoundingly in the Hachette (book publishers) case, the court rejected its cockamamie legal theory called controlled digital lending (CDL). Then, when a group of record labels (UMG et al.) filed suit against IA for infringing reproduction, distribution, and performance of sound recordings, I wrote at the time that there’s no way IA has an unfounded theory to test drive in this case. Who knew that they had yet another cockamamie idea on deck?
In a small, semantic gift to counsel for plaintiffs, IA has argued that the preservation of “hisses, crackles, and pops” on the pre-1978 sound recordings favors a finding that their reproduction, distribution, and performance of those recordings is fair use. “Defendants’ newly devised Rice Krispies argument for fair use here is even less credible than Internet Archive’s previous fabricated fair-use theory for books that the Southern District of New York recently eviscerated,” the plaintiffs’ response states.
At issue is IA’s “Great ’78 Project,” which digitizes, distributes, and digitally streams older sound recordings on the premise that it does so for preservation purposes and to make “rare” recordings available to the public. If the recordings at issue were indeed rare, the project might have a reasonable claim to exceptions under the Music Modernization Act (2018) which allows libraries and archives to make pre-1972 sound recordings available if they make a good-faith effort to determine that the recordings are not commercially available. Here, the record labels present evidence that the relevant sound recordings IA makes available can be found commercially, including on major streaming platforms.
So, because IA does not have a solid argument that the sound recordings at issue are hard to find, it overstates the historic value of the Great 78 Project thus: “Preserving these records as they would have been heard and experienced by listeners at the time they were made approximately one hundred years ago is a critically important part of archiving these works.” Is it though?
If we’re going to play this game, a 78RPM shellac resin disk that has degraded in random ways over the decades, and is then digitized and played via computer in the 2020s will NOT match the “experience of a listener” in, say, 1935. A brand-new disk in 1935 played on a phonograph of the period sounded different to that listener than the file IA produces by acquiring and digitizing that disk in 2018. Relatedly, a serious audiophile will tell you that a pristine vinyl album plays back sounds (overtones, etc.) that are lost in digital reproductions like CDs. Yet, these qualitative distinctions have no bearing on the copyright rights in the sound recordings, whether the reproductions are fixed in vinyl, CD, MPEG file, or crystals.
To the extent that there is some forensic, archeological value in any of the dust and noise in the old grooves of a 78 disk, this implies such a distinctive (if not eccentric) field of research, that it hardly justifies making the material available to the general public via the internet. I think a conservator would agree that the physical disks comprise a valuable collection and that, perhaps, storing a digital archive would be of value, but a conservator might question the historic significance of modern, random damage done to a given disk embodying an old recording. What if two tiny scratches were made in 1973 and 1996? What history is the contemporary listener hearing? Even if we knew that history, how important is the scratch Betty made when she bumped the record player that time Larry tried to cop a feel? It’s not quite the same as, say, the margin notes written by the composer on the original sheet music.
I’ll leave the preservation discussion there, however, because as a legal argument, the Rice Krispies defense is rather soggy. As the response for the plaintiffs states, “Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it.”
Presumably, IA wants to show that for the purpose of “education” or “scholarship,” named in the preamble of the fair use statute, its reproduction and distribution of the sound recordings “as listeners would have heard them a hundred years ago” is sufficient to find that the factor one analysis favors fair use. Notwithstanding the other three factors, even if IA could convince the court that random “hisses, crackles, and pops” are of general cultural value, the archive is overreaching on fair use.
The fair use exception anticipates some new authorship that enhances or expands the value of the work used. In the context of scholarship, this typically means that a scholar uses some portion of a work to author commentary, criticism, or analysis. Further, the scholar’s new work is separately protected by copyright as a new expression. By contrast, IA reproduces, distributes, and performs protected expression (the music recording) mixed with extraneous and random sounds that nobody has authored.
Just because someone might be able to ascribe significance to those random noises, this does not exempt the use under factor one—especially after the Supreme Court in Warhol rejected such broad and vague rationales of this nature. To put it another way, even if a human author were to intentionally add crackles and pops to a sound recording, he would have to prove that those additions comment upon the original work, or his reproduction would be an unlicensed (infringing) derivative work.
IA is trying to fit itself for a fair use defense that no individual, follow-on author could easily advance. Of course, their grasping at fair use is based partly on the fact that IA is an archive providing a useful resource like Google Books. But as they have not presented an argument on that basis (which would also not win), and because they tacitly admit that the Great ‘78 Project falls outside statutory exemptions, it looks once again like the anti-copyright ideology of Brewster Kahle is the reason they’re bringing Rice Krispy Treats to this party. What can I say? The guy’s a cereal infringer.
